S.

Kiran Kumar v/s State of Kerala, Represented by

The Public Prosecutor, Ernakulam & Others

Crl.M. Appl. No. 1 of 2022 in Crl.A. No. 694 of 2022

Decided On, 13 December 2022

At, High Court of Kerala

By, THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MRS.

JUSTICE SOPHY THOMAS

For the Petitioner: M/s. C. Prathapachandran Pillai, N.G. Sindhu, Priya Shanavas, T.S.

Sarath, V.C. Sarath, Mohapraseed Mohan, V. Renjith Kumar, Advocates. For the

Respondents: R1 & R2, Public Prosecutor, Additional R3, M/s. S. Rajeev, V. Vinay, K.P. Sarath,

M.S. Aneer, Prerith Philip Joseph, Advocates.

Judgment Text

Sophy Thomas, J.

1. Crl.M.A.No. 1 of 2022 in Crl.A.No.694 of 2022 This is an

application filed by the appellant/accused in S.C.No1231 of
2021 on the file of Additional District and Sessions Judge-I,
Kollam under Section 389(1) of Cr.P.C., for suspension of
sentence and to release him on bail.

2. The applicant/appellant was convicted and sentenced inter

alia for offences punishable under Sections 304B, 306 and
498A of the Indian Penal Code and Sections 3 and 4 of the
Dowry Prohibition Act, 1961, and was sentenced to
imprisonment for various terms including rigorous
imprisonment for 10 years under Section 304B of the Indian
Penal Code, 1860.

3. The prosecution case is that a 23 year old girl named

Vismaya, who was the wife of the appellant/accused,
committed suicide at her matrimonial home, at the wee hours
of 21.06.2021, by hanging inside the bathroom, unable to
bear the matrimonial cruelties and illtreatment from the
appellant/husband, both physical and mental, in connection
with demand for dowry. The appellant/accused abetted and
instigated her to commit suicide, subjecting her to severe
mental and physical cruelties. The appellant/accused
demanded dowry from the deceased and her parents, in
contravention of the provisions of the Dowry Prohibition Act,
1961.

4. Sri.C.Prathapachandran Pillai, the learned counsel

appearing for the applicant/appellant, contended that the
finding of the trial court was based on conjunctures,
surmises, assumptions and on per se inadmissible evidence.
The conviction was mainly based on the contents of the call
records. But the said call records, approximately 5.5 lakh in
number, were never subjected to investigation, though 198
records were marked from among them. No materials were
available to presume commission of offence under Section
304B of the IPC. Section 113B of the Evidence Act also will
not come into operation, as there was nothing to show that,
soon before the death, the victim was subjected to
harassment, in connection with demand of dowry. The
testimony of PW11, the father of the applicant/appellant, who
witnessed the quarrel between the applicant/appellant and
the deceased, will show that the quarrel was not even
remotely connected with demand of dowry. The deceased
was longing for a child, and she feared that without the
blessings of her father, she would not conceive. Since father
of the deceased sent some messages cursing her, she
wanted to go and meet her father in the night of 20.06.2021,
and over that issue, the applicant/appellant shouted at her.
Thereafter, she committed suicide by entering into the
bathroom, and the applicant/appellant never subjected her to
harassment in connection with demand of dowry, so as to
attract an offence punishable under Section 304B of the IPC.
Further, there is nothing to show that he subjected her to
matrimonial cruelties physical or mental or abetted her
suicide. Moreover, he never demanded or received any dowry
from the deceased or her parents.

5. Learned counsel further contended that the

applicant/appellant is an young man, aged only 31 years, and
he was working as Assistant Motor Vehicle Inspector in the
Motor Vehicles Department. He was apprehended on
22.06.2021, in connection with the incident, and was
released on bail only on 03.03.2022. He was convicted and
sentenced vide impugned judgment dated 24.05.2022, and
since then he is in jail. He is challenging the conviction and
sentence, as there is no clear or cogent evidence to prove his
guilt. According to him, the impugned judgment is bad in the
eye of law. Along with the appeal, he preferred the above
Crl.M.A.No. 1 of 2022, for suspension of the sentence and to
release him on bail, till the disposal of appeal.

6. Smt.S.Ambika Devi, Learned Special Government Pleader

for women and children, representing the 1st respondent-
State, filed written objection with the following contentions.
Smt.Vismaya, a 23 year old young girl, doing final year BAMS
in the Corporate Medical College, Pandalam, having high
hopes and aspirations regarding her future, was given in
marriage to the applicant/appellant, an Assistant Motor
Vehicle Inspector, on 31.05.2020. Father of Smt.Vismaya had
agreed to give 100 sovereigns of gold ornaments, 1.20 Acres
of landed property and a car as her parental share in
connection with the marriage, on a query made by PW11, the
father of the accused, on the date of betrothal. A new ‘Yaris’
car was purchased by PW1, but on the wedding eve, the
applicant/appellant expressed his displeasure with the brand
of the new car purchased, and he demanded deceased
Vismaya to replace it with another car of his choice. PW1, her
father, agreed to purchase a new car as demanded by him.
After ten days of marriage, the applicant/appellant along with
the deceased, went to the bank for opening a Locker, where
the gold ornaments were weighed by the accused and he
found that it was less in quantity, than agreed to be given. He
put her ornaments in his own locker instead of opening a
locker in her name or even in their joint name, as agreed. He
continuously abused, insulted and even assaulted the
deceased on account of the car, and also regarding the
deficit in gold ornaments, given to her, from her family. On
29.08.2020, at 2.25 p.m., the appellant assaulted her while
traveling in the car given from her family, and she had to get
down half way through, to take shelter in a neighbouring
house. On 03.01.2021, the applicant/appellant took her to her
paternal house during midnight and assaulted her in front of
her brother, and even abused and assaulted his brother. He
left the deceased and the car at her house, saying that he
was given a ‘scrap car’ and a ‘waste girl’, and he declared
that the future course could be decided only after giving him
the assets promised. He even threw away the gold chain
given to him by PW1 at the time of marriage. On 11.01.2021,
parents of the deceased went to the house of the
applicant/appellant, for inviting him and his family members
to the marriage of the brother of the deceased. Since they
realised that the deceased was facing harassment from the
applicant/appellant, they took her back to their house.
Neither the applicant/appellant nor his family members
attended the marriage of her brother. A mediation talk was
slated to be convened on 25.03.2021 by the community
leaders; but meantime, the applicant/appellant exerted
pressure on the deceased and she was taken back to his
house, from her college, on his birthday on 17.03.2021,
without informing her family members. Obviously, her father
was not happy with her decision to go back to her
matrimonial home. On 21.06.2021, PW1, the father of the
deceased, was informed that the deceased was admitted in
Padmavathy Hospital in a critical condition. When he reached
the hospital, his daughter was found dead.

7. The learned Special Government Pleader pointed out that

the call records collected from the mobile phones of the
applicant/appellant, the deceased and their near relatives are
relied on by the applicant/appellant, also, to plead his
innocence, and he has no case that the call records are
manipulated in any manner. No exceptional circumstances
are brought out to suspend the sentence and to release him
on bail. Since there is finding of competent court of
jurisdiction, on the guilt of the applicant/accused, he cannot
claim the benefit of presumption of innocence, for the
purpose of getting suspension of sentence awarded by the
trial court. There is every likelihood of confirming the lower
court judgment. Moreover, the prosecution as well as the
father of the victim have preferred separate appeals for
enhancing the sentence and compensation. So learned
Special Government Pleader prayed for dismissal of this
application.

8. Sri.S.Rajeev, the learned counsel appearing for additional

R3, the father of the deceased, filed argument notes
incorporating the relevant portions of deposition of witnesses
as well as the extract of the call records between the
deceased, her parents, sister-in-law and her childhood friend,
to show that she was subjected to physical and mental
cruelties on demand of dowry by the applicant/ appellant.

9. Now let us see whether any exceptional grounds are made

out to allow the application filed by the applicant/appellant to
suspend his sentence, and to release him on bail, pending
the appeal.
10. The mobile phone conversations and whatsapp chats
between the deceased, her parents, friends, and the
applicant/appellant were also relied on by the Trial Court, to
find him guilty of the offences alleged apart from the oral
testimony of the witnesses. It is pertinent to note that the
applicant/appellant has no case that the call records were
forged or manipulated to create false evidence. It is more
pertinent that the applicant/appellant also is relying on some
of the call records and whatsapp chats marked from the side
of prosecution to plead his innocence.

11. Sri. C.Prathapachandran Pillai, the learned counsel

appearing for the applicant/appellant, relied on Ext.P88(ax),
Ext.P87(ae), Ext.P87(af)-D22, Ext.P87(ag), Ext.P87(ai),
Ext.P87(am), Ext.P87(ao), Ext.P87(aq), Ext.P87(u)-D15,
Ext.P86(a), Ext.P87(h) etc., the chats between the
applicant/appellant and the deceased to say that the
deceased was having a normal and friendly marital
relationship with the applicant/appellant. In Ext.P88(ax) dated
16.03.2021, she had asked the applicant/appellant whether
he could give her a baby. Once, she asked him whether he
could purchase beer for her. Moreover, on the fateful night,
she invited him to play “Eight Pool” game in Mobile Phone.

12. The deceased wanted the applicant/appellant to take her

to her paternal house, to seek blessings of her father in the
mid-night of 20.06.2021 and since he refused, they quareled
with each other, and later she committed suicide, is the case
projected by him. The applicant/appellant and the deceased
lived together for about one year and 21 days since their
marriage on 31.05.2020. We cannot presume that they had
no good moments at all in their family life to talk cordially.
Ext.P88(ax) was on 16.03.2021 while they were living
separately and on the next day the deceased was taken to
her matrimonial home by the applicant/appellant, which
happened to be his Birthday, that too from her college and
without informing her family members.

13. The depositions of PWs 1 to 4, the call records between

the deceased with her mother-PW3, her friend-PW4, her
sister-in-law-PW2 and also the call records between PW1-the
father of the deceased and PW11-the father of the accused
are all pointing towards the fact that the accused wanted to
get a new car of his choice or its equivalent value of Rs.10
lakh from her house, and also the deficit gold ornaments,
which was agreed to be given from her family, and the
deceased was abused and assaulted on that account
continuously, and many a times, she was asking her mother
to deposit Rs.10 lakh or at least Rs.7 lakh in the bank account
for giving it to the applicant/appellant. She was expressing
her helplessness to continue in her matrimonial home
suffering the illtreatments, on account of his demand for car
and gold. Ext.P87(r), Ext.P87(v), Ext.P87(w), Ext.P87(x),
Ext.P87(aa), Ext.P87(ac), Ext.P87(ad), Ext.P87(ag),
Ext.P87(aj), Ext.P87(ak), to Ext.P87(al), Ext.P87(a) to Ext.
P87(f) are all supporting the case of the prosecution that the
applicant/appellant was harassing her on demand of dowry.
Ext.P87(a) to Ext.P87(f), the whatsapp chats, between the
deceased and the sister of applicant/appellant dated
13.06.2021 i.e., just one week before the suicide will show
that the deceased was put under pressure by the
applicant/appellant on demand of dowry, and she wanted to
go back to her paternal house, for which she was seeking the
help of her sister-in-law. Ext.P10 whatsapp chat between the
deceased and her childhood friend-PW4 dated 24.05.2021
will show the mental and physical harassment the deceased
was subjected to by the applicant/appellant, and the fact that
she was not even allowed to contact her parents.

14. Learned counsel for the applicant/appellant,

Sri.C.Prathapachandran Pillai, would rely on Ext.P88(ar) dated
20.02.2021 and Ext.P88(b) dated 06.05.2020, the
conversions between the applicant/appellant and the
deceased to say that even the deceased was admitting that
the accused never demanded a car from her family. But on
going through the entire text, it is evident that he was not
happy with the car purchased by her father, as it was not the
car of his choice. PW11-the father of the applicant/appellant
is admitting the fact that on the fateful night on 20.06.2021,
there occurred a quarrel between the accused and the
deceased; but according to him, it was on account of a curse
message sent by her father, and she wanted to go to her
house to see her father in that midnight, which the
applicant/appellant did not like. In the statement filed by the
accused under Section 313 (5) of Cr.P.C., the accused has
stated that he took her mobile phone to keep it aside, but
before that she had deleted that curse message. The story
put forward by the applicant/appellant and his father seems
to be not trustworthy prima facie, and it appears to be an
exaggeration. In normal human parlance, it is difficult to
believe that since her father did not respond to her call or
even sent a curse message, drove her to take a decision to
end her life at her budding age, that too, just one year after
her marriage. It is also difficult to believe their story that she
was aspiring for a baby and since she got menstruation on
the date of incident, she became desperate, and she
committed suicide. Even if her father was not happy with her
reunion with her husband, if she was living happily with her
husband, there was no chance for her to take a wrong
decision to end her life.

15. PW11, the father of the applicant/appellant, is admitting

the fact that on 29.08.2020, while returning from Kollam,
there occurred an altercation between the applicant/accused
and the deceased. But according to him, it was with respect
to the mileage of the car. He admitted that on 29.08.2020,
i.e., on the date of the said altercation, PWs 1 and 3 reached
the house of the accused and there was a discussion
regarding the car and the gold. The incident on 03.01.2021
that the accused took Vismaya to her paternal house during
midnight also is admitted by PW11-the father of the accused.
But now the applicant/appellant is relying on the mobile
conversation between himself and the deceased to say that
he never demanded a car. It is pertinent to note that
Ext.P88(b) conversation was even prior to the marriage. If at
all there was no demand, prior to the marriage, the
subsequent conduct from the part of the appellant, as
evidenced from the documents and depositions of witnesses,
will clearly show that after the marriage, he was abusing and
assaulting the deceased on account of the car given and the
deficit of gold ornaments given from her family.

16. Since the major punishment imposed on the

applicant/appellant is under Section 304B of the IPC, for the
limited purpose of this Crl.M.A.,we may see whether there is
any patent infirmity in the order of conviction under Section
304B of the IPC which renders it prima facie erroneous.

17. In State of Madhya Pradesh v. Jogendra and Another

reported in [(2022) 5 SCC 401], the Apex Court held as
follows:

“9. The most fundamental constituent for attracting the

provisions of Section 304-B IPC is that the death of the
woman must be a dowry death. The ingredients for making
out an offence under Section 304-B have been reiterated in
several rulings of this Court. Four prerequisites for convicting
an accused for the offence punishable under Section 304-B
are as follows:

(i) that the death of a woman must have been caused by

burns or bodily injury or occurred otherwise than under
normal circumstance;

(ii) that such a death must have occurred within a period of

seven years of her marriage;
(iii) that the woman must have been subjected to cruelty or
harassment at the hands of her husband, soon before her
death; and

(iv) that such a cruelty or harassment must have been for or

related to any demand for dowry.

17. In the above context, we may usefully refer to a recent

decision of a three-Judge Bench of this Court in Gurmeet
Singh v. State of Punjab [Gurmeet Singh v. State of Punjab,
(2021) 6 SCC 108 : (2021) 2 SCC (Cri) 771] that has restated
(at SCC pp. 111-12, para 9) the detailed guidelines that have
been laid down in Satbir Singh v. State of Haryana [Satbir
Singh v. State of Haryana, (2021) 6 SCC 1 : (2021) 2 SCC (Cri)
745] , both authored by N.V. Ramana, C.J. relating to trial
under Section 304-B IPC where the law on Section 304-B IPC
and Section 113-B of the Evidence Act has been pithily
summarised in the following words : (Satbir Singh case
[Satbir Singh v. State of Haryana, (2021) 6 SCC 1 : (2021) 2
SCC (Cri) 745] , SCC p. 13, para 38)

38.1. Section 304-B IPC must be interpreted keeping in mind

the legislative intent to curb the social evil of bride burning
and dowry demand.

38.2. The prosecution must at first establish the existence of

the necessary ingredients for constituting an offence under
Section 304-B IPC. Once these ingredients are satisfied, the
rebuttable presumption of causality, provided under Section
113-B of the Evidence Act operates against the accused.

38.3. The phrase “soon before” as appearing in Section 304-B

IPC cannot be construed to mean “immediately before”. The
prosecution must establish existence of “proximate and live
link” between the dowry death and cruelty or harassment for
dowry demand by the husband or his relatives.
38.4. Section 304-B IPC does not take a pigeonhole approach
in categorising death as homicidal or suicidal or accidental.
The reason for such non-categorisation is due to the fact that
death occurring “otherwise than under normal
circumstances” can, in cases, be homicidal or suicidal or
accidental.”

(emphasis in original and supplied)

18. Now let us go to Section 2 definition of ‘Dowry’, in the

Dowry Prohibition Act 1961, which reads as follows:

“2. Definition of “dowry”. —In this Act, “dowry” means any

property or valuable security given or agreed to be given
either directly or indirectly—

(a) by one party to a marriage to the other party to the

marriage; or

(b) by the parents of either party to a marriage or by any

other person, to either party to the marriage or to any other
person;

at or before [or any time after the marriage] [in connection

with the marriage of the said parties, but does not include]
dower or mahr in the case of persons to whom the Muslim
Personal Law (Shariat) applies. [***]

Explanation II.— The expression “valuable security” has the

same meaning as in section 30 of the Indian Penal Code (45
of 1860).”

19. The definition itself shows that any property or valuable

security, given or agreed to be given either directly or
indirectly, by one party to the marriage to the other party to
the marriage or by parents of either parties to the marriage
or by any other person, to either party to the marriage or to
any other person at or before, or any time after the marriage
in connection with the marriage of the said parties is dowry.
So even if there was no property or valuable security given or
agreed to be given at or before the marriage, it can be even
at anytime after the marriage also.

20. There need not be any agreement for giving the dowry as
laid down by the Apex Court in State of A.P. v. Raj Gopal
Asawa and Another [(2004) 4 SCC 470]. The argument that
there has to be an agreement at the time of marriage, in
view of the words, “agreed to be given” occurring in Section
2 of the Dowry Prohibition Act, and in the absence of any
such evidence, it would not constitute a dowry is not tenable
since the amended definition of dowry in Section 2 of the Act,
includes not only the period, before and at the time of
marriage, but also the period subsequent to the marriage. In
the case on hand, even if there was no demand for dowry
before or at the time of marriage, as pleaded by the
applicant/appellant, the subsequent demand made by him is
sufficient to attract the definition of dowry under Section 2 of
the Dowry Prohibition Act, 1961.

21. There is no dispute with respect to the fact that

Smt.Vismaya, the wife of the applicant/appellant, died
otherwise than under normal circumstances and the death
occurred within a period of seven years of her marriage.

22. The third limb that, Smt.Vismaya was subjected to cruelty

or harassment at the hands of her husband also is prima facie
proved through the oral and documentary evidence relied on
by prosecution. PW11- the father of the applicant/appellant is
admitting that he had given warning to his son, regarding his
quarrel with the deceased, and he is even admitting the
physical assault, made by his son towards the deceased. But,
according to him, those incidents have no proximity with the
date of incident. According to him, after Smt.Vismaya came
back to her matrimonial home on 17.03.2021, there was no
quarrel between herself and the applicant/appellant. But,
Ext.P87(r), Ext.P87(v), Ext.P87(w), Ext.P87(x), Ext.P87(aa),
Ext.P87(ac), Ext.P87(ad), Ext.P87(ag), Ext.P87(aj) to
Ext.P87(al), Ext.P87(a) to Ext.P87(f), Ext.P87(aq), Ext.P10 to
Ext.P12 and Ext.P90(a) are all after 17.03.2021 i.e., after she
came back to her matrimonial home. So that contention is
not tenable.

23. Regarding the proximity of the harassment, in Surinder

Singh v. State of Haryana [(2014) 4 SCC 129], the Apex Court
observed in paragraph 17 of that judgment, which reads as
follows:

“17. Thus, the words “soon before” appear in Section 113-B

of the Evidence Act, 1872 and also in Section 304-B IPC. For
the presumptions contemplated under these sections to
spring into action, it is necessary to show that the cruelty or
harassment was caused soon before the death. The
interpretation of the words “soon before” is, therefore,
important. The question is how “soon before”? This would
obviously depend on the facts and circumstances of each
case. The cruelty or harassment differs from case to case. It
relates to the mindset of people which varies from person to
person. Cruelty can be mental or it can be physical. Mental
cruelty is also of different shades. It can be verbal or
emotional like insulting or ridiculing or humiliating a woman.
It can be giving threats of injury to her or her near and dear
ones. It can be depriving her of economic resources or
essential amenities of life. It can be putting restraints on her
movements. It can be not allowing her to talk to the outside
world. The list is illustrative and not exhaustive. Physical
cruelty could be actual beating or causing pain and harm to
the person of a woman. Every such instance of cruelty and
related harassment has a different impact on the mind of a
woman. Some instances may be so grave as to have a lasting
impact on a woman. Some instances which degrade her
dignity may remain etched in her memory for a long time.
Therefore, “soon before” is a relative term. In matters of
emotions we cannot have fixed formulae. The time-lag may
differ from case to case. This must be kept in mind while
examining each case of dowry death.”

24. In Kans Raj v. State of Punjab [(2000) 5 SCC 207], the

Apex Court held in paragraph 15 of that judgment, as
extracted below:

“15. It is further contended on behalf of the respondents that

the statements of the deceased referred to the instances
could not be termed to be cruelty or harassment by the
husband soon before her death. “Soon before” is a relative
term which is required to be considered under specific
circumstances of each case and no straitjacket formula can
be laid down by fixing any time-limit. This expression is
pregnant with the idea of proximity test. The term “soon
before” is not synonymous with the term “immediately
before” and is opposite of the expression “soon after” as
used and understood in Section 114, Illustration (a) of the
Evidence Act. These words would imply that the interval
should not be too long between the time of making the
statement and the death. It contemplates the reasonable
time which, as earlier noticed, has to be understood and
determined under the peculiar circumstances of each case. In
relation to dowry deaths, the circumstances showing the
existence of cruelty or harassment to the deceased are not
restricted to a particular instance but normally refer to a
course of conduct. Such conduct may be spread over a period
of time. If the cruelty or harassment or demand for dowry is
shown to have persisted, it shall be deemed to be “soon
before death” if any other intervening circumstance showing
the non-existence of such treatment is not brought on record,
before such alleged treatment and the date of death. It does
not, however, mean that such time can be stretched to any
period. Proximate and live link between the effect of cruelty
based on dowry demand and the consequential death is
required to be proved by the prosecution. The demand of
dowry, cruelty or harassment based upon such demand and
the date of death should not be too remote in time which,
under the circumstances, be treated as having become stale
enough.”

25. In Preet Pal Singh v. State of Uttar Pradesh and Another

[(2020) 8 SCC 645], the Apex Court held that:

“There is a difference between grant of bail under Section

439 CrPC in case of pre-trial arrest and suspension of
sentence under Section 389 CrPC and grant of bail, post
conviction. In the earlier case, there may be presumption of
innocence, which is a fundamental postulate of criminal
jurisprudence, and the courts may be liberal, depending on
the facts and circumstances of the case, on the principle that
bail is the rule and jail is an exception, as held by this Court
in Dataram Singh v. State of U.P. [(2018) 3 SCC 22 : (2018) 1
SCC (Cri) 675] However, in case of post-conviction bail, by
suspension of operation of the sentence, there is a finding of
guilt and the question of presumption of innocence does not
arise. Nor is the principle of bail being the rule and jail an
exception attracted, once there is conviction upon trial.
Rather, the court considering an application for suspension of
sentence and grant of bail, is to consider the prima facie
merits of the appeal, coupled with other factors. There should
be strong compelling reasons for grant of bail,
notwithstanding an order of conviction, by suspension of
sentence, and this strong and compelling reason must be
recorded in the order granting bail, as mandated in Section
389(1) CrPC.”

26. In Preet Pal Singh’s case cited (supra), the Apex Court
further held that discretion to be exercised judicially and not
in a casual manner, while suspending the sentence and
releasing the convict on bail, pending appeal. Even though
detailed examination of merits of case may not be required
while considering application for bail; but at the same time,
exercise of jurisdiction has to be based on well settled
principles and in a judicious manner and not as a matter of
course.

27. The nature of accusation made against the accused, the

manner in which the crime is alleged to have been
committed, the gravity of the offence and its social impact
are all to be looked into, while considering an application for
suspension of sentence and to release the accused on bail.
The appellate court is on